General terms and conditions
Disclaimer of warranties/consequential damages.
PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER SHALL HAVE NO LIABILITY TO PURCHASER FOR ANY CLAIM, LOSS OR DAMAGE CAUSED OR ALLEGED TO HAVE BEEN CAUSED DIRECTLY, INDIRECTLY, INCIDENTALLY OR CONSEQUENTIALLY BY THE EQUIPMENT, OR BY ANY INADEQUACY THEREOF OR DEFICIENCY OR DEFECT THEREIN, OR BY ANY INCIDENT WHATSOEVER IN CONNECTION THEREWITH WHETHER ARISING IN STRICT LIABILITY OR OTHERWISE. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE HEREUNDER FOR ANY LOST PROFITS OR FOR SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER DISCLAIMS AND PURCHASER WAIVES ANY WARRANTY REGARDING THE OPERATION OF MACHINERY OR TYPE OF REFRIGERANT REFRIGERATED CONTAINERS MAY CONTAIN. IN THE EVENT ANY EQUIPMENT SURVEYS ARE PERFORMED AT THE REQUEST OF PURCHASER, SUCH SURVEYS SHALL BE CONDUCTED BY AN INDEPENDENT THIRD PARTY ON BEHALF OF PURCHASER. SELLER DOES NOT GUARANTEE THE ACCURACY OF ANY SUCH SURVEY.
Taxes, customs, compliance with laws.
Prior to sale to Purchaser, the Equipment has been used solely for international transportation and is located at the pickup location under temporary admission permission
pursuant to the Convention on Temporary Admission (Istanbul Convention) and related international and domestic laws. The Equipment has not been qualified in any jurisdiction for any other use. Purchaser agrees to assume exclusive liability for and to pay, to prepare all necessary filings (including VAT filings that may be required under the reverse-charge provisions), indemnify and hold SELLER harmless from all sales or use taxes, transfer, title and registration fees, VAT, domestication, personal property taxes or other taxes, tolls, levies, imposts, duties or government charges imposed in connection with the intended use of the Equipment by Purchaser, the sale of Equipment, or any services rendered by SELLER in connection with this sale of Equipment, including any penalties, fines or interest thereon.
Purchaser will defend at its own expense and indemnify and hold harmless Seller, its agents, employees and indemnities from and against any and all claims, losses, damages, liabilities, demands, actions, costs, expenses and fees (including attorneys’ fees) arising out of, or in connection with, the sale of the Equipment to Purchaser or any subsequent use, operation or disposition of the Equipment.
The remedies reserved to Seller herein shall be cumulative and in addition to any other or further remedies provided by law. Seller’s failure to insist on performance of any of the terms and conditions of this Agreement, or Seller’s waiver of any breach, shall not act as a waiver of any other term or condition or any subsequent breach.
Purchaser may not assign this Agreement nor any of its rights or obligations herein without Seller’s prior written consent, which consent may be withheld for any reason. It is understood and agreed that this Agreement and the applicable invoice embodies the complete understanding of Purchaser and Seller relative to this sale. The parties may modify this Agreement only by a writing both have signed.
Jurisdiction and law.
This Agreement shall be construed and interpreted according to the laws of the State of California, USA excluding its conflict of laws rules. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement. Any claim or controversy arising out of or relating to this sale, may be referred to arbitration in San Francisco county, in the state of California, USA before a single arbitrator appointed by the American Arbitration Association or may be litigated in the state or federal courts located in San Francisco county, in the state of California, USA. Seller and Purchaser hereby consent to be subject to the jurisdiction of such arbitration or courts and to waive any objection to the venue of such arbitration or courts and not to assert any defense of forum non conveniens. Seller and Purchaser agree that service of process upon the other in any action or arbitration may be made by mailing a copy (by registered or certified mail or commercial courier with receipt required) postage prepaid, addressed to the respondent Party at the address shown on the invoice. Service shall be complete seven (7) days after such process has been sent to the respondent Party. Purchaser agrees to pay Seller’s costs and attorneys’ fees in any action or arbitration brought to enforce any of the provisions of this Agreement. Nothing herein shall affect the right of either Party to serve legal process in any other manner permitted by law or affect the right of either Party to bring any action or proceeding against the other Party or its property in any other court of competent jurisdiction.
The parties shall follow the steps bellow in a consecutive order:
In the event of any dispute, claim, question, or disagreement arising from or relating to this agreement or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules.
If a dispute arises out of or relates to this contract, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before Resorting to arbitration, litigation, or some other dispute resolution procedure. Furthermore Conexwest shall pay up to three hours of mediation services.
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitrator(s) shall be selected, by the parties, from a screened and trained pool of available experts. The place of mediation or arbitration shall be San Francisco, CA, USA. The language(s) of the mediation or arbitration shall be English Or The arbitration shall be conducted in the language in which the contract was written.